Section 512 and the interpretation courts have given it have shifted too much of the burden to the rights owners. Every little step back to a better balance is welcome. In that spirit, the court’s decision in Columbia Pictures Industries, Inc. v. Fung, 710 F3d. 1020 (9th Cir.2013) is welcome.

In Acuff v. Rose, 510 U.S. 569, 114 S. Ct. 1164 (1994), the Supreme Court set out the rule that transformative use (copying) of a small part of a work could be fair use even if done for commercial purposes (the case involved a parody). Since then, the idea of transformative fair use has been the most important issue in contested fair use cases. It is clear that the Court was referring to copying of part of a work and using it to create a new work of expression. This is different in concept and kind from the decisions that morph the concept into one that protects comprehensive copying so long as the copies are used for a different purpose than the author's original purpose for the work. Properly understood, this comprehensive copying is simply "infringement".

A system captures broadcast signals and makes them available to potentially millions of the system's subscribers without a license from the copyright owners; is the system engaging in a public performance of the copyrighted works involved? The obvious answer is yes. But a divided (2-1) panel of the Second Circuit held that the capture and retransmission did not constitute a "public" performance. Go figure. If transmission to a potential audience of millions is not distribution to the public, what is?
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Several months ago the Supreme Court insulated arbitration clauses in consumer and other small claims settings from the most frequent challenge to their enforceability – the allegation that they are unconscionable unless they allow class action proceedings. The decision presents businesses with a choice – many will use mandatory arbitration clauses in licensing, online, services, and other contracts.

Trademark law gives the mark owner a right to protect against conduct that is likely to create confusion about sources or sponsorship of a product or service. But trademark law does not give the mark owner control over all use of the image, word, or phrase that constitutes its mark. Volumes of reported cases and billions of dollars of litigation have gone into drawing the distinction and the amounts have increased in the digital information age. There are many doctrines used. Now, apparently, the Ninth Circuit has reincarnated another – functional use of a mark.

When the Uniform Computer Information Transactions Act (UCITA) was being debated nationally in the late 1990’s and early 2000’s, it became part of a wildly intense debate about the nature of contract law that ultimately led to the rejection of two misguided efforts to revise ancient UCC Article 2. UCITA barely survived vitriolic and often dishonest attacks. It was enacted in two commercially major states and the concepts it set out have become mainstream judicial analyses, referred to in a number of legal treatises.

While many companies that write apps or develop parallel platforms grounded in open source willingly disclose code and comply with copyleft rules (e.g., some transferees to also disclose their code), others prefer to protect (e.g., not disclose) some of their code and not force customers who resell products to disclose their code. The issue for these companies has always been how can they approach an open source platform or program without being caught in the copyleft “license” with a duty to disclose if they retransfer their products. The answer has never been certain, but the stakes today have never been higher.

In 2004, in the Chamberlain case, the Federal Circuit unaccountably grafted a non-statutory element on the access control provisions of the DMCA, requiring that there be some connection to preventing infringement for there to be protection against circumvention of a technology control on access to a copyrighted work. The Ninth Circuit, in the MDY case, expressly rejects Chamberlain, returning the statute to its intended purpose – creating a right to protect controls on access to works in digital contexts.

The Ninth Circuit revisited the ownership question involved in copyright first sale in Vernor v. Autodesk, Inc., 2010 WL 3516435 (9th Cir. 2010) and got it right, adopting a variation of the Federal Circuit’s DSC decision and the approach taken by all other Circuit Courts that have looked at the question.The terms of the contract control whether the transferee becomes the owner of the copy.